Sudan - Land Governance Country Profile

2. Policies and Laws Relevant to Land Governance in Sudan

The legal framework governing land in Sudan is a complex mix of statutory law and customary law that have evolved over time, with little to no coordination between the two. The formal laws governing land include colonial era laws and a handful of post-independence statutes relating to the registration of land and its impact on land rights, and the legal framework regarding land access. Thus, there is no unified legal framework of land tenure across the country.

The following are the policies and laws that are relevant to land governance in Sudan:

2.1 The Comprehensive Peace Agreement (CPA) 2005

The CPA was signed on January 9, 2005, by the Sudan People's Liberation Movement (SPLM) and the Government of Sudan. Its purpose was to end the Second Sudanese Civil War and develop democratic governance countrywide. It established a National Land Commission to arbitrate between willing contending partiers on claims over land and sort out their claims (Art. 2.6). This NLC was expected to be representative and independent. The CPA does not address issues regarding the ownership of land and natural resources, but calls for recognition of customary land rights.

2.2 Interim National Constitution (INC) 2005

The INC was enacted in 2005 following the signing of the Comprehensive Peace Agreement. It recognizes the rights of women and children. Thus under Article 32 (1) it requires State to guarantee equal right of men and women to the enjoyment of all civil, political, social, cultural and economic rights, including the right to equal pay for equal work and other related benefits he State shall combat harmful customs and traditions which undermine the dignity and the status of women.

Article 43 recognizes the right to own property. The Article states that every citizen shall have the right to acquire or own property as regulated by law and no private property may be expropriated save by law in the public interest and in consideration for prompt and fair compensation and also no private property shall be confiscated save by an order of a court of law.

Under Article 186, the regulation of land tenure, usage and exercise of rights thereon shall be a concurrent competence, exercised at the appropriate level of government and rights in land owned by the Government of the Sudan shall be exercised through the appropriate or designated level of Government. It further requires all levels of government shall institute a process to progressively develop and amend the relevant laws to incorporate customary laws, practices, local heritage and international trends and practices. Articles 187 and 188 establish a National Land Commission and Southern Sudan Land Commission respectively.

2.3 Land Resettlement and Registration Act (LRRA), 1925

The LRRA is the primary reference for details on land settlement and the registration of rights. The LRRA also consolidated government ownership over land by establishing that all unoccupied land is presumed to be state land. It rules and procedures for the gazetting of land for mainly urban settlement and resettlement, surveying of plots and demarcation, land (lease) registration, transfers of leasehold land, issuance of land certificates (including provisions for the destruction and loss of documentation), fraud and erroneous registration.

2.4 Land Acquisition Act, 1930

This Act provide procedures for the acquisition of land for public purposes (mainly for urban settlement); expropriation and compensation mechanisms.

2.5 Unregistered Land Act, 1970

The Unregistered Land Act (1970) served to nationalize all unregistered land in the country. The Act provided that all land that had not been registered at the time of the

Act‟s passage was state land. The state retained land ownership and could grant leasehold interests to individuals and entities, in effect allocating land for commercial development without regard for customary rights ((UNEP 2012a);

• The 1970 Act even entitled the Government to use force in safeguarding its

“land”; this has further been strengthened by the 1991-1993 amendments to the 1984 Civil Transactions Act, which states that: No court of law is competent to receive a complaint that goes against the interest of the state. The Unregistered Lands Act of 1970 was a Sudanese legislation. The law stipulated that all lands not privately owned and registered would automatically belong to the state. The law effectively abolished communal land ownership under customary practices. The Unregistered Land Act (1970): This is the legal cornerstone to the process of expropriation of rural communities. The Unregistered Land Act “transferred to the Government in full ownership of unregistered lands, whether waste, forest, occupied or unoccupied, which had not been registered before the commencement of the Act on 6 April 1970.” It abolished the rights of native authorities to allocate land. The idea was for the state to operate as a „supra-tribe‟ that would allocate land as tribal leaders had done previously. In fact, it opened the way for the development of modern schemes to the benefit of the state‟s key constituents.

Although this act was repealed by the Civil Transaction Act (1984) it still reflects the present Government of Sudan philosophy concerning land:

• All land that is not registered before the enactment of this law becomes the property of the government by default;

• Cuts heavily into rural communities‟ land rights and challenges communal and tribal ownership;

• Provides the government with a tool to facilitate the acquisition of large tracts of land for agricultural schemes, at the expense of rural residents and especially pastoralists;

• Transfers all unregistered land to the government, assigning the power of transfer to any public or national enterprise, as well as to farmers on a leasehold basis.

2.6 Civil Procedure Act, 1983

It sets the legal scene for arbitration of conflicts but seriously lacks details on procedures.

2.7 Civil Transaction Act, 1984 and its Amendment, 1990

The Civil Transaction Act (1984) and its Amendment of 1990 covered the following:

• Repealed the Unregistered Land Act of 1970 and identifies different forms of land and property rights such as land held in undivided shares, family ownership, etc.

• Identifies different forms of land and property rights such as: land held in undivided shares, family ownership, possession of unclaimed property, ownership of usufruct rights over land and property, grants of usufruct rights, easement rights, acquisition of ownership by accession (good faith and bad faith article 608), possession and succession;

• States that registered usufruct rights are equal to registered ownership;

• Regulates inheritance, compensation for land required by the state, usufruct rights and the possibility of registering easement rights, or rights of way;

• States that registered usufruct rights are equal to registered ownership;

• Considers the following issues, pertinent to securing land tenure:

• Transfer and inheritance of rights;

• Compensation requirements for land appropriated by the state;

• Granting of land leases to cooperative bodies (communities and IDPs);

• Conditions for obtaining usufruct rights;

• Possibility of registering easement rights (rights of way);

• Legalizes elements of shari‟ah (Islamic) law;

• Legally confirms the role of the state as a landowner and a land manager;

• Legalizes elements of Sharia law and confirms the role of the State as a landowner.

2.8 Urban Planning and Land Disposal Act, 1994

• It lays out the procedures and institutional responsibilities for urban planning, including the delimitation of town and village boundaries, needs for gazetting;

• It needs to be implemented in conjunction with the 1930 Land Acquisition Act, but includes further details on:

1. Expropriation of land for public interest, including settlement;
2. Compensation modalities for expropriated land (25 percent rule of compensation in kind);
3. Disposal of government land through leases;
4. Procedures for acquiring land leases.

2.9 The Local Government Act, 1998

The Local Government Act 1998 was an attempt to restore the land management and administration vacuum at the local level created by the abolition of the Native Administration system in 1971 (De Wit, 2001). According to De Wit, the Act confers important responsibilities to the States and localities (mahaliyya) and calls for:

• Identification of territories of jurisdiction that reflect rural reality with the possibility of identifying territories of local governance that coincide with customary land management territories;

• Setting and functioning of land management committees. These committees exist in every locality (for example, in Darfur) and are functional. The committees are made up of participants from various sectoral departments and contribute to decision-making on validation of land claims to allow registration. A similar over-arching committee exists at state level, usually linked to the Ministry of Agriculture, which performs a similar function;

• Development of local bylaws for regulation of land management, including grazing lands and transhumance routes. For example, there are committees at state and locality level whose function it is to determine bylaws on grazing land and transhumance routes, as dictated by the state acts which regulate grazing and farming;

• Active and legal involvement of customary authorities and land users in land management For example, the Act gives states the authority to formulate their respective Native Administration State Acts

2.10 The Aboliltion of the Prescription and Limitation Act

This act ensured that occupation of the land – i.e., use of the land as opposed to registered ownership, the condition of most rural communities outside the Nile valley – would confer no legal rights over the land. In other words, the fact that a community or an individual have been exploiting a piece of land for generations gives them no rights over its future use.

2.11 Organisation of Nomads and Farmers Act

The Act aimed to establish institutional structures to organize nomads and farmers and to assist in the implementation of government programs for rural development. In particular, a Higher Council for Farmers and Pastoralists was supposed to be established to implement the Act. To date the Act is still by and large awaiting implementation.

2.12 Disposition of Lands and Physical Planning Act

This Act regulates the designation of land for different purposes and urban planning.